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By Saranac Hale SpencerPublished: Jul 1, 2014

Contraceptive Mandate Hits Religious Objection Wall in U.S. High Ct.

Tomasz Papuga

Companies like the Mennonite-owned Conestoga Wood Specialties in East Earl, Pa., can’t be required to fund female contraceptives due to their religious objections, the U.S. Supreme Court ruled Monday in a decision that could foretell its approach to the next wave of litigation over that portion of Obamacare.

The number of cases across the country, just short of 50, filed by for-profit companies owned by religious families who object to carrying health insurance plans for their employees that include coverage of contraceptives like Plan B—as is required by the Affordable Care Act—has now been outpaced by the number of lawsuits that have been filed by religious nonprofits objecting to the method offered by the government for them to opt out of the contraceptive mandate. They now number just over 50, according to the Becket Fund for Religious Liberty, a conservative legal organization that has brought several of the suits.

Now that the U.S. Supreme Court has ruled that for-profit companies that object to providing that coverage can’t be required to do so, the next looming issue for the high court to decide is whether the method for religious nonprofits to opt out is overly burdensome.

That mechanism, frequently called the “accommodation,” was set up by the U.S. Department of Health and Human Services to accommodate nonprofit organizations affiliated with religious institutions—like hospitals, schools and various charities—that aren’t per se religious employers—like churches, which are exempt from the contraceptive mandate—but sincerely object to some kinds of contraception on religious grounds.

Those organizations can certify that they object and they won’t have to pay for that part of the insurance policy, but the insurance provider will be required to reach out to the affected employees to offer them the coverage not included in their employers’ policy. The organizations argue that the system still burdens their religious freedom since their employees will be offered the contraceptive coverage.

In its opinion Monday, which had combined the case brought by Conestoga with a case out of the U.S. Court of Appeals for the Tenth Circuit called Burwell v. Hobby Lobby Stores, the high court used the accommodation as an example of a system that could satisfy both the government’s interest in providing contraceptive coverage to women and the companies’ sincerely held religious beliefs.

Referring to the Department of Health and Human Services, Justice Samuel Alito Jr., writing for the majority, said, “In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [U.S. Food and Drug Administration]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.”

The court seems to be very well aware of the architecture of the accommodation, he said, but whether that signals that it thinks the program is a good one won’t be clear until it is squarely presented with it.

Legal observers agreed that it’s too early to tell which of the religious nonprofit cases the high court is likely to take up, but several mentioned a case filed by the University of Notre Dame in the Seventh Circuit.

Robert Tuttle, a professor at the George Washington University Law School, saw the accommodation as the base for the whole opinion in Hobby Lobby.

“That’s the cornerstone, the linchpin,” he said, explaining that the court was able to point to that; the justices didn’t have to imagine what might happen to the employees since they could see how this alternative system would play out. The major concern for courts in religious exemption cases is the possible effects on third parties, he said.

The fact that there is a pre-existing alternative mechanism is “the most important fact in the background” of this case, Tuttle said.

But, he said, it’s not clear if the court would approve of that mechanism in the context of the religious nonprofits.

“Kennedy may really hold the key,” said Ira C. Lupu, also a professor at GWU, referring to the frequent swing voter on the Supreme Court, Justice Anthony Kennedy. In Hobby Lobby, he concurred with the majority, which was made up of the four more conservative justices.

Kennedy noted in his concurrence that the plaintiffs hadn’t “criticized” the accommodation, suggesting that it might be a workable option to accommodate for-profit companies.

“The accommodation works by requiring insurance companies to cover, without cost-sharing, contraception coverage for female employees who wish it,” Kennedy said. “That accommodation equally furthers the government’s interest but does not impinge on the plaintiffs’ religious beliefs.”

Kennedy’s concurrence is much more clear in sending a signal that he approves of the accommodation for religious nonprofits than the majority’s opinion, Lupu said.

That could come into play if the court takes up one of those cases and splits 4-4, leaving Kennedy as the swing vote, he added.